Criminal Enforcers

The sanctions imposed on Iraq, though established properly within the framework of the Untied Nations system have, by their cumulative effect, become illegal. What flows from this realisation is that all countries have a legal obligation to no longer recognise the Iraqi sanctions and to bring them to an end.

The leading analysts have described the sanction regime imposed on Iraq as a result of its invasion of Kuwait in August 1990 as being “in a class by itself.” In The Sanctions Decade, David Cortright and George Lopez state that Iraq is the recipient of “the longest, most comprehensive, and most severe multilateral sanctions regime ever imposed.” The cumulative effect of these sanctions, imposed by the United Nations Security Council four days after the invasion, is such that it transgresses one of the most fundamental principles of international relations — the prohibition against committing crimes against humanity — and thus has moved the sanctions from being permissible to being illegal under international law.

THE UN SANCTION REGIME AND ITS EFFECT: As a sanction imposed on Iraq for its 1990 invasion of the Kuwaiti Emirate, the UN Security Council adopted, by way of Resolution 661, a comprehensive embargo on all Iraqi imports and exports and froze its assets abroad. In so doing, the Security Council was well within its powers as, at its core, the United Nations is a collective security arrangement which is meant to act on behalf of the international community if it deems that international peace is threatened or breached, or an act of aggression has taken place. Under the powers provided to it by Chapter VII of the UN Charter, the Security Council may use force — or delegate it, as it did in allowing the Coalition Forces to physically rid Kuwait of Iraqi forces — or may use any other means in a bid to restore the peace. In the case of Iraq, the original option was non- military and was manifest in a sanction regime which sought to have Iraq comply with the Council’s demand to unconditionally withdraw from Kuwait.

Resolution 661 provides for a near total embargo allowing only an exception for “supplies intended strictly for medical purposes.” Within a week of the end of the fighting of the Second Gulf War, in February 1991, the United Nations dispatched a team to consider the humanitarian needs in both Iraq and Kuwait. In the often- quoted report of a UN under- secretary-general, Mr Martti Ahtisaari, he wrote that “nothing that we had seen or read had quite prepared us for the particular form of devastation which has now befallen” Iraq; “the recent conflict,” he wrote, “has wrought near-apocalyptic results.” Ahtisaari went on to say that “Iraq has, for some time to come, been relegated to a pre-industrial age.” Yet what Mr Ahtisaari could not know at the time, was that more than a decade later, sanctions would remain in place, and that Iraq would remain locked into this pre-industrial age.

While the UN Security Council has modified the sanctions regime a number of times over the last 12 years, it has failed to reverse a humanitarian catastrophe in Iraq which has been in free fall for many years. For example, as a result of the Ahtisaari report, the Security Council removed the embargo on foodstuffs and allowed agricultural equipment and items related to water purification and sanitation. Although the Council made provisions for the selling of oil by the Iraqi government as early as 1991, it was not until late 1996 that the so-called “oil- for-food” programme could be agreed upon. Under a tightly regulated regime, Iraq was allowed to sell oil so as to buy only “foodstuffs, medicines, and materials and supplies for essential civilian needs … in particular, health related items.” This programme was modified in 1998 to allow the selling of more than six billion dollars worth of oil and, one year later, by virtue of Resolution 1284, the Council lifted the cap on the amount of oil that could be sold.

Despite the modification to the UN sanctions, the UN secretary-general, Kofi Annan, noted, in very diplomatic terms, in a March 2000 report, that even if the oil-for-food programme was “implemented perfectly, it is possible that the efforts will prove insufficient to satisfy the population’s needs.” This, it may be said, is a gross understatement. In a study considering the health of Iraqis during the 1990s, Richard Garfield, a professor of nursing at Columbia University, found no improvement in nutritional conditions among children under five, despite the “oil-for-food” programme. “Essentially,” Garfield writes, “the nutritional conditions for children in Iraq plateaued [in 1996], and remained at that level a year after the influx of considerably improved rations from the Oil-for-Food programme. And it’s only in 1999 that nutritional improvements are starting to be recognised.” In other words, the oil-for-food programme stabilised the free fall of Iraqi children’s health conditions at their 1996 levels, and merely started to reverse the trend — hardly an indication of satisfying the population’s needs.

What has transpired in Iraq amounts to a children’s holocaust. According to a Harvard study conduced in 1991, in the first eight months of that year 47,000 excess children deaths took place. In 1996, UNICEF put a number on the children dying as a result of the United Nations sanctions regime; it found that 4,500 children were dying every month from preventable hunger and disease. Garfield, in a study of mortality among Iraqi children, found that between 1991 and 1998 at least 100,000 — but more likely 227,000 excess deaths — took place, of which three quarters resulted from the consequences of United Nations sanctions. In a 1999 report, requested by the UN Security Council, it was found that in “marked contrast to the prevailing situation prior to the events of 1990-1991, infant mortality rates in Iraq today are among the highest in the world, low infant birth weight [of less than 2.5kg] affects at least 23 per cent of all births.” The arrested growth of children has become widespread; with the UN secretary general noting, in 1997, that chronic malnutrition has resulted in 31 per cent of children having had their growth stunted, and 26 per cent being underweight. Kofi Annan concluded his report by stating: “one- third of children under five years of age … are malnourished.”

The overall effect of sanctions has been, according to Richard Garfield: “the only instance of a sustained, large increase in mortality in a stable population of more than 2 million in the last 200 years.” This should come as little surprise as a UN Development Programme field report stated that “the country has experienced a shift from relative affluence to massive poverty.” The International Committee of the Red Cross, which has had people on the ground throughout the 1990s, reported in 2000 that “daily life for ordinary Iraqis was a struggle for survival. The tragic effects of the embargo were seen in the steady deterioration of the health system and the breakdown of public infrastructure. Despite the increase in availability of food, medicines and medical equipment, following a rise in oil prices and the extension of the ‘oil-for-food’ programme, suffering remains widespread.”

The “oil-for-food” programme, in many ways, is a failure because sanctions are an outgrowth of a strategy conceived by the United States to simply inflict the most economic hardship on Iraq as possible. The programme mandates that 25 per cent of oil sale revenues be handed over to the UN Compensation Committee which administers reparations payments related to war damages, while 5 per cent of revenues are shared equally between Turkey, for the transportation costs of oil, and the United Nations, for its administration and operational costs related to Iraq. A further 13 per cent of revenues pay for the administration of the Kurdish territories which act autonomously under cover of the US-UK imposed “no-fly zone.” Thus, the Iraqi Government receives only 58 per cent of the revenues from the “oil-for-food” programme, which are to be distributed among 87 per cent of the Iraqi population.

Further, the UN Security Council established a Sanctions Committee in 1991 to ensure respect for Resolution 661. The United States, along with the United Kingdom and to some extent France, have imposed their will on the Committee and have sought to interpret the exceptions to the embargo in the narrowest of terms, thus holding up many items destined for Iraq on the basis of being dual (civilian/military) use, or rejecting other items such as ball-point pens or watches, as not being of an “essential” humanitarian need.

Of the items which had been given the green light, less than 50 per cent have made it to Iraq. As Abbas Alnasrawi, an economy professor at the University of Vermont, has noted, of “the $20.8 billion appropriated to all of Iraq, only $8.4 billion-worth of goods for all sectors of the economy had arrived in Iraq by the end of July 2000.” Compounding the misery is the fact that once items make their way to Iraq, it is not guaranteed that they will be distributed in a timely fashion. A 1999 UN Report noted that nearly half of medical supplies which had been imported to Iraq “remained in warehouses and had not been distributed to local clinics and hospitals,” in part, because Iraq has not been able to rebuild the infrastructures required to distribute these items.

The effects of the UN sanctions on Iraq have been of such a magnitude that they have prompted — not once, but twice — the resignation of the highest-ranking UN official dealing with Iraq. The first of those two individuals, Denis Halliday, who was the United Nations assistant secretary-general and humanitarian coordinator in Iraq, would characterise, in 1999, the sanctions as “genocide.” Although Halliday noted that “with or without original intent, the impact of economic sanctions constituted genocide. Whether it is de jure or de facto genocide, the semantics are irrelevant.” Yet, if we scratch the surface a bit, we see that semantics are relevant; for if it can be demonstrated that sanctions constitute an act such as “genocide” or, as will be demonstrated, a “crime against humanity,” then there is a legal obligation on all countries to desist from maintaining the Iraqi sanctions.

THE ILLEGALITY OF UN SANCTIONS:There exists in international law a hierarchy of norms whereby certain fundamental laws trump all others. These legal norms (known as jus cogens norms) are meant to supersede any other provision of international law, be it found in treaties or conventional law. Thus, despite the fact that the United Nations Charter is the highest law of the international system, and that the Charter mandates that all countries carry out the decisions of the Security Council, such obligation must come second to norms of jus cogens. This is so because countries have agreed that without respecting such fundamental norms the whole international order might well break down.

There is a large gap between what is to be understood by “genocide” in its everyday incarnation and in the manner in which it is understood as a term of international law. Genocide has been considered by the International Criminal Tribunal for Rwanda as being the “crime of crimes” and, thus, to be found in violation of the provisions of the 1948 Convention regarding genocide, it must be demonstrated that individuals committed acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” by, for instance, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

Because genocide is meant to be at the summit of international crimes, the threshold for determining a violation is raised high by the need to demonstrate the special intent (or dolus specialis) to commit genocide. As William Schabas has written in his treaties on Genocide in International Law, the crime of genocide has to be conducted with the “intent to destroy, in whole or in part;” however, where that “specified intent is not established, the act remains punishable, but not as genocide.” Although the Rwanda Tribunal has noted that special “intent is a mental factor which is difficult, even impossible, to determine,” it remains the standard to ensure that true cases of genocide are dealt with as such. In the case of Iraqi sanctions, without being able to demonstrate that the intent of the UN Security Council is to destroy, in whole or in part, the Iraqi people; “genocide” — as defined by international law — cannot be imputed.

That being said, the threshold for what constitutes a “crime against humanity” in international law is lower than genocide. Again, recalling that there is a difference between the everyday use of a term and the definition of that term under international law, it appears that the continued sanctions against Iraq most resemble the crime against humanity known as “extermination.” The most recent manifestation of the international understanding of what are “crimes against humanity” are found in the Statute of the soon to be established International Criminal Court. Under the provisions of the Statute, crimes against humanity are a number of acts which are “committed as part of a widespread or systematic attack directed against any civilian population.” Among those acts is that of “extermination,” which includes the “intentional infliction of conditions of life … calculated to bring about the destruction of part of a population.” The noted Egyptian jurist Sherif Bassiouni, the leading expert on the issue of crimes against humanity, writes that the “plain language and ordinary meaning of the word “extermination” implies both intentional and unintentional killing.” Also, negligence — that is, knowing, or should have known, and not done anything — carries with it responsibility for the crime of extermination.

While the attribution to UN sanctions as having the effect of “extermination” appears, at first glance, shocking, it should be understood that the legal notion of “extermination” needs to be disassociated from the every-day notion of term. The United Nations Security Council has been aware, for more than a decade, of the effects of its sanctions regime on Iraq. And though it has attempted to mitigate the suffering of Iraqis through its “oil-for-food” programme, it has been made clear by studies carried out by the UN itself that these modifications have not reversed the humanitarian catastrophe which has beset Iraq. When the definition of extermination is considered, that is: “intentional infliction of conditions of life … calculated to bring about the destruction of part of a population” it is clear that after more than ten years of sanctions, which have killed anywhere from hundreds of thousands to nearly two million people, that the United Nations is involved in a campaign of, what can be considered, in legal terms, as “extermination;” which in turn constitutes a crime against humanity. If this characterisation of the effects of the United Nations Security Council sanctions imposed on Iraq is correct, then legal obligations follow towards all countries because crimes against humanity are considered as norms of jus cogens.

The international legal system is fundamentally different from its domestic counterparts precisely in the area of enforcement — you cannot “lock up” a state. Hence, what countries have agreed to, internationally, is a system that mandates that when a country violates international law, it should be held “responsible” for this action and be made to “repair” the legal breach. Typically, this is achieved by making “reparation” payments or by trying, as far as possible, to erase the effects of the violation.

During August 2001, the International Law Commission, the UN body mandated to draft international law, adopted, after more than four decades of deliberation, the Draft Articles on State Responsibility. In those Draft Articles, which are considered as reflecting customary international law, states have an obligation to “cooperate to bring to an end through lawful means” a violation to a norm of jus cogens such as, in the case at hand, a violation of a crime against humanity. Further, as the Iraqi sanctions constitute a crime against humanity, then states also have an obligation not to “recognise [this situation] as lawful” and to no longer “render aid or assistance in maintaining that situation.” As such, there is an obligation in international law, which every state must respect, to end the United Nations sanctions regime imposed on Iraq as transgressing the legal definition of the term “extermination” — as understood within the legal parameters of a crime against humanity.

If the fact that Iraq sanctions constitute a crime against humanity is not incentive enough to bring them to an end, statesmen within the UN should be weary of the impeding establishment of International Criminal Court. As of 1 July 2002, not only will the United Nations and countries be held “responsible” for violations of the law, but the Court is specifically established to hold persons “individually, criminally responsible” for a number of crimes including that of crimes against humanity.

* The writer is assistant professor of international law at the American University in Cairo. He is editor of the recently published Unlocking the Middle East: the Writings of Richard Falk, Olive Branch Press.